COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60141 STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION TERRI MASON : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 19, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-249082 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor JACK HUDSON, Assistant MICHAEL TELEP, Assistant The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: HYMAN FRIEDMAN, Cuyahoga County Public Defender DONALD GREEN, Assistant The Marion Building, Room 307 1276 West Third Street Cleveland, Ohio 44113-1569 - 2 - KRUPANSKY, J.: Defendant-appellant Terri Mason timely appeals from her conviction and sentence of fifteen years to life for murder in violation of R.C. 2903.02 and three year prior consecutive sentence for an accompanying gun specification pursuant to R.C. 2929.71. Defendant confessed to the Cleveland Heights police to shooting the victim, Leroy Gilbert, in the head on the morning of January 19, 1990, but sought to blame her cousin for the murder at trial. Defendant filed a motion to suppress her two typed-page confession to the police claiming her cousin, Jerrynell Griffey, coerced her to confess to the murder and the police "embellished" certain details of her confession. The trial court denied defendant's motion to suppress her oral and written statements after conducting a hearing immediately prior to the bench trial on the aggravated murder indictment. Dr. P. S. Screenivas Murthy of the Cuyahoga County Coroner's Office performed an autopsy on the victim and testified at trial that his death was caused by the single gunshot to the back of his head. Dr. Murthy was unable to specify any range of time when the death occurred. Sharon Rosenberg, a forensic pathologist at the coroner's office, subsequently testified to finding nitrite particles on a blood stained baseball cap worn by the victim indicating the fatal shot had been fired within twenty-four to thirty inches of - 3 - the back of his head. Rosenberg also stated she found no gunshot residue on defendant's hands after conducting a test several hours after defendant's arrest that afternoon. Police Captain Michael Cannon was subsequently called by the prosecution and reiterated his testimony from the suppression hearing concerning the circumstances of defendant's confession. Cannon stated that he and Detective Mark Schmitt responded to the scene at approximately 1:00 p.m. and took the videotape and photographs of the scene and victim admitted into evidence. During the course of his investigation that afternoon, Cannon took a statement from Griffey who rented the residence where the shooting took place and where defendant and the victim resided with Griffey and her daughter. Griffey called the police to report the incident from the Cinnabun store at Severance Center, where Griffey worked, and informed the police that defendant had just called her there after the shooting took place. Griffey could not be located prior to the trial and did not testify at the trial. Cannon testified that he took defendant's statement later that afternoon after reading defendant her rights. Cannon subsequently read the inculpatory statement into the record. The statement, signed after the introduction explaining defendant's rights and on each of the two pages with three corrections initialled by defendant, was admitted into evidence. - 4 - Detective Schmitt testified concerning his investigation of the crime scene. Schmitt stated he found the murder weapon, a .380 baretta, under Griffey's bed in the house and a second gun in the victim's coat pocket. The partial print found on the murder weapon did not match defendant's fingerprints and was not compared to the fingerprints of Griffey or the victim. Joy Treska testified that she went to visit defendant on the day of the shooting at approximately noon. Treska stated she and defendant took Griffey's daughter to school after defendant met her outside the house and told her something "bad" had happened. Defendant admitted to Treska that she shot the victim in the back of the head while he was not looking because defendant was afraid he was going to harm her. Treska and defendant went thereafter to Byron Carner's house where defendant called Griffey. Treska stated that during the conversation Griffey asked defendant and Treska to remove certain guns from the residence. Byron Carner confirmed the visit when called by the defense but testified that, contrary to defendant's statement to the police, defendant did not tell him she shot the victim. Defendant testified that she confessed to the murder because Griffey threatened to kill defendant and her mother during the telephone call to Griffey from Carner's house. Defendant stated Griffey told her to say most of what appeared in her statement to the police and the police embellished the statement by including several remarks she never made. - 5 - Although defendant conceded that she agreed to giving the statement to the police after Cannon and Watson read her Miranda rights, she stated that she did not understand the significance of waiving these rights. Nevertheless defendant read the statement after it was prepared, signed it three times and made and initialled three corrections. Defendant contradicted this statement at trial by stating that when she awoke that morning she found the victim lying on the floor, knew something was wrong and thought the victim was high on drugs. Defendant stated she left the house without conducting any further investigation to take Griffey's daughter to school and saw Joy Treska outside the house. Defendant denied any involvement in the shooting or that she admitted to Treska that she killed the victim. The trial court found defendant guilty of murder after defendant presented five character witnesses. Defendant timely appeals raising two assignments of error. Defendant's first assignment of error follows: TERRI MASON WAS DENIED HER FREEDOM WITHOUT DUE PROCESS OF LAW BY HER CONVICTION WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant's first assignment of error lacks merit. Defendant argues her conviction was against the manifest weight of the evidence since the prosecution did not prove any motive for the murder and her statement to the police contained remarks which were not true, facts which were not known to her - 6 - when the statement was made, and was contradicted by the physical evidence. Defendant further argues the manifest weight of the evidence established the police embellished defendant's confession and the confession itself had been coerced by her cousin. Defendant has not cited any authority holding that a conviction, based in part on the defendant's own prior confession, may be against the manifest weight of the evidence or offered any reason to conclude defendant's self-contradictory denial at trial was any more credible than her prior confession. Defendant's claims concerning the accuracy of her confession as typed by the police relates only to various specific details, and we note defendant signed the confession when it was made after making only three minor corrections. When reviewing arguments challenging a conviction as against the manifest weight of the evidence, this Court has stated as follows: In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guidelines to be taken into account by the reviewing court: 1. The reviewing court is not required to accept as true the incredible; 2. whether the evidence is uncontradicted; 3. whether a witness was impeached; 4. what was not proved; 5. the certainty of the evidence; - 7 - 6. the reliability of the evidence; 7. whether a witness' testimony is self-serving; 8. whether the evidence is vague, uncertain, conflicting or fragmentary. (Emphasis in original.) State v. Mattison (1985), 23 Ohio App. 3d 10. The Court stated the eight factors listed are "merely guidelines to be taken into account when weighing the evidence. They are not hard and fast rules which must be followed." Id. Furthermore, a reviewing court will not reverse a verdict when the trier of fact could have reasonably concluded from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169. In State v. Martin, supra, the court set forth the test to be utilized when addressing the issues of manifest weight of the evidence. The Martin court stated as follows: *** The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. *** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. Martin, supra at 175; see also State v. Davis (1988), 38 Ohio St. 3d 361, 365. Moreover, the weight of the evidence and credibility of witnesses are primarily for the trier of facts. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. A reviewing court may grant greater deference to the - 8 - findings made in a bench trial than those made by a jury. State v. Crisp (Dec. 13, 1990), Cuyahoga App. No. 57805, unreported at 8-9. When considering defendant's argument her conviction was against the manifest weight of the evidence a reviewing court must analyze each element of the underlying offense. R.C. 2903.02 defines the crime of murder and provides as follows: (A) No person shall purposely cause the death of another. Based upon our review of the record sub judice, together with the reasonable inferences drawn therefrom, considering the testimony and credibility of the prosecution's witnesses Captain Cannon, Detective Schmitt, the other officers and Joy Treska, and defendant's witnesses including defendant, Byron Carner and the five defense character witnesses, the verdict fails to indicate the trial court lost its way and created a manifest miscarriage of justice. We note that defendant's arguments and testimony concerning police "embellishments" and her cousin's coercion of her confession fail to account for defendant's prior admission to Joy Treska to committing the murder. Although defendant also claimed she did not admit to the killing, evidence of such an admission does not constitute hearsay and is admissible substantive evidence. Evid. R. 801(D)(2)(a); State v. Peoples (Dec. 5, 1985), Cuyahoga App. No. 49789, unreported at 5. - 9 - It is well within the province of the trial court to choose to believe the testimony offered by the state and reject that presented by defendant concerning the underlying admission to Joy Treska and the accuracy of the subsequent confession to the police. The trial court could properly find the evidence demonstrated defendant purposely caused the death of Leroy Gilbert in violation of R.C. 2903.02. The factors in Mattison, supra, are met in the case sub judice since the prosecution presented reliable credible evidence of defendant's guilt of murder while in the possession or control of an operable firearm. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error follows: TERRI MASON WAS DENIED HER RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION. Defendant's second assignment of error lacks merit. Defendant argues her trial counsel's failure to call defendant as a witness on the pretrial motion to suppress her oral and written confession to the police denied her effective assistance of counsel by failing to provide the trial court with any basis to exclude this evidence. Captain Cannon testified at the suppression hearing that defendant's confession was typed after defendant knowingly, voluntarily and intelligently waived her Miranda rights. Defense - 10 - counsel cross-examined Cannon and called Detective Watson to support defendant's claims of "embellishment" and inaccuracies committed by the police. The standards governing claims of ineffective assistance of counsel under the United States and Ohio Constitutions are similar. To demonstrate ineffective assistance of counsel warranting reversal of a defendant's conviction, defendant must affirmatively establish the following: (1) defense counsel's performance was seriously flawed and deficient; and (2) defendant was prejudiced by such representation and the result of the trial would have been different if defense counsel had provided proper representation. Strickland v. Washington (1984), 466 U.S. 668; State v. Brooks (1986), 25 Ohio St. 3d 144. Without considering whether defense counsel's decision not to call defendant as a witness at the suppression hearing constitutes deficient performance rather than a reasonable deliberate strategic choice, we find defendant failed to demonstrate any prejudice from failing to call defendant at the suppression hearing which deprived her of a fair trial. State v. Bradley (1989), 42 Ohio St. 3d 136. Based upon our review of the record sub judice, defendant's motion to suppress her confession would properly have been denied even if her subsequent testimony at trial had been presented at the suppression hearing. The state satisfied its burden of demonstrating by a preponderance of the evidence that the confession was accurate, - 11 - voluntary and made in an intelligent and knowing manner without coercion by the police. State v. Hudson (Mar. 14, 1991), Cuyahoga App. No. 58172, unreported at 4-7. Moreover, we note even if defendant's motion to suppress her confession to police had been granted, Treska's testimony concerning defendant's admission to the murder was sufficient by itself to support defendant's conviction. State v. Peoples, supra. Accordingly, defendant's second assignment of error is overruled. Judgment affirmed. - 12 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, C.J., and SPELLACY, J., CONCUR JUDGE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .